Leigh v. Raby ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 LAURA LEIGH, et al., Case No. 3:22-cv-00034-MMD-CLB 7 Plaintiffs, ORDER v. 8 JON RABY, NEVADA STATE DIRECTOR 9 OF THE BUREAU OF LAND MANAGEMENT, et al., 10 Defendants. 11 12 I. SUMMARY 13 This action arises from a U.S. Bureau of Land Management (“BLM”) gather of wild 14 horses in eastern Nevada. Plaintiffs1 argue that BLM violated the Wild Free-Roaming 15 Horses and Burros Act, 16 U.S.C. § 1331, et seq., and the National Environmental Policy 16 Act of 1969, 42 U.S.C. § 4321, et seq., through the Administrative Procedure Act, 5 U.S.C. 17 § 701, et seq. (“APA”). (ECF No. 31.) Plaintiffs further argue that BLM infringed their First 18 Amendment right to observe the gather by unlawfully obstructing their access. (Id. at 25- 19 26.) The Court previously denied Plaintiffs’ motion for a temporary restraining order and 20 preliminary injunction. (ECF No. 24.) Before the Court is Plaintiffs’ motion to complete and 21 supplement the Administrative Record (“AR”) and for leave of Court to conduct limited 22 discovery.2 (ECF No. 48 (“Motion”).) As further explained below, the Court will grant in 23 part, and deny in part, the Motion. 24 /// 25 26 1Laura Leigh, Wild Horse Education, Animal Wellness Action, CANA Foundation, and The Center for a Humane Economy. 27 2Defendants the Department of Interior, BLM, and Jon Raby filed a response (ECF 1 II. BACKGROUND 2 The Court incorporates by reference the background included in its order denying 3 Plaintiffs’ motion for a temporary restraining order and preliminary injunction. (ECF No. 24 4 at 2-7.) Following that order, Plaintiffs filed the operative first amended complaint. (ECF 5 No. 31 (“FAC”).) The Court also incorporates by reference Plaintiffs’ summary description 6 of their claims in their FAC. (ECF No. 48 at 2-3.) The parties participated in case 7 management proceedings before United States Magistrate Judge Carla L. Baldwin. (ECF 8 No. 41.) In pertinent part, she stated, “that discovery in this case will be limited to the 9 Administrative Record.” (Id. at 1 (hearing minutes).) She later granted a stipulation 10 suspending the merits briefing schedule until the Court resolves the Motion. (ECF No. 46.) 11 Meanwhile, Defendants filed the first version of the AR in December 2022. (ECF No. 44.) 12 III. DISCUSSION 13 As noted, Plaintiffs seek to compel completion and expansion of the version of the 14 AR Defendants filed, and also seek discovery on some of their claims. (ECF No. 48.) The 15 Court accordingly divides its discussion to correspond to Plaintiffs’ requests, after first 16 discussing the legal principles that apply to its analysis. 17 The Motion primarily requires the Court to consider the proper scope and contents 18 of the AR. “The ‘whole’ administrative record . . . consists of all documents and materials 19 directly or indirectly considered by agency decision-makers and includes evidence 20 contrary to the agency’s position.” Thompson v. U.S. Dep’t of Lab., 885 F.2d 551, 555 (9th 21 Cir. 1989) (emphasis and citation omitted). The general rule is that “that courts reviewing 22 an agency decision are limited to the administrative record.” Lands Council v. Powell, 395 23 F.3d 1019, 1029 (9th Cir. 2005) (citation omitted). But the United States Court of Appeals 24 for the Ninth Circuit recognizes four exceptions to this general rule. See id. at 1030. These 25 exceptions “are narrowly construed and applied” to foreclose improper de novo review of 26 agency decisions. Id. Parties may not use extra-record evidence “as a new rationalization 27 either for sustaining or attacking [an] [a]gency’s decision.” Ass’n of Pac. Fisheries v. 1 evidentiary review, “these limited exceptions operate to identify and plug holes in the 2 administrative record.” Lands Council, 395 F.3d at 1030. And parties seeking to expand 3 the scope of review bear a “heavy burden to show that the additional materials sought are 4 necessary to adequately review” an agency’s decision. Fence Creek Cattle Co. v. U.S. 5 Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). 6 A. Completion of the AR 7 Plaintiffs first ask the Court to require Defendants to complete the AR with 8 deliberative materials—and produce a corresponding privilege log—along with some 9 documents Plaintiffs allege Defendants considered, specifically the Gold Rock Mine 10 Project FEIS and documents that discuss a hearing on the use of motorized vehicles such 11 as helicopters in wild horse and burro gathers. (ECF No. 48 at 4-8.) Defendants counter 12 that deliberative documents are not properly part of the AR, the Court should not require 13 a privilege log because the AR comes with a presumption of completeness, and the 14 specific documents that Plaintiffs would like added to the AR were not before BLM at the 15 time of the challenged decision. (ECF No. 49 at 5-14.) The Court agrees with Plaintiffs as 16 to the deliberative documents and privilege log, but Defendants as to the specific 17 documents. 18 Starting with the specific documents, Plaintiffs do not address in reply Defendants’ 19 argument that they did not consider these documents at the time they made the challenged 20 decision. (Compare id. at 9 n.3, 10 n.4 with ECF No. 50.) The Court accordingly cannot— 21 and does not—find that Defendants should supplement the AR with them because there 22 is apparently no dispute that Defendants did not consider them. See Thompson, 885 F.2d 23 at 555 (specifying that the AR “consists of all documents and materials directly or indirectly 24 considered by agency decision-makers”). Plaintiffs’ Motion is therefore denied to the 25 extent it seeks inclusion in the AR of the Gold Rock Mine Project FEIS and documents 26 that discuss a hearing on the use of motorized vehicles such as helicopters in wild horse 27 and burro gathers. 1 However, the Court agrees with Plaintiffs that Defendants must supplement the AR 2 with any documents withheld as deliberative, but not subject to the deliberative process 3 privilege, and produce a privilege log documenting any withheld documents. As Plaintiffs 4 argue, the Court found in an order on administrative record motions in Bartell Ranch LLC 5 v. Ester M. McCullough, Case No. 3:21-cv-00080-MMD-CLB, ECF No. 155 at 4-6 (D. Nev. 6 Dec. 27, 2021) that BLM had to complete the administrative record with any documents 7 withheld as deliberative, and file a privilege log with the Court. The Court made several 8 points in that decision that apply with equal force here. See id. First, some deliberative 9 documents should logically be included in the AR because it consists of all documents 10 directly or indirectly considered by the agency when it made its decision. See id. Second, 11 judicial review is rendered ineffective if the agency can take the position that deliberative 12 documents are simply not part of the administrative record. See id. Third, without a 13 privilege log, neither the Court nor the plaintiff(s) can even tell what the agency has 14 withheld and why. See id. For all these reasons—the reasons provided in the Bartell 15 Ranch order—the Court agrees with Plaintiffs that Defendants must complete the AR 16 within 60 days with any documents withheld as deliberative, and simultaneously produce 17 a privilege log noting any documents withheld under the deliberative process privilege (or 18 for any other reason) that BLM directly or indirectly considered in the review process 19 culminating in the Pancake Complex Gather Plan Environmental Assessment (“EA”). See 20 Ctr. for Env’t Health v. Perdue, Case No. 18-CV-01763-RS, 2019 WL 3852493, at *3 (N.D. 21 Cal. May 6, 2019) (“Courts in the Northern District of California have consistently required 22 agencies seeking to assert deliberative process privilege to produce a privilege log.”). 23 B. Expansion of the AR 24 One of Plaintiffs’ main allegations in this case is that Defendants should have 25 prepared a Herd Management Area Plan (“HMAP”) instead of the EA they prepared before 26 proceeding with the gather. (ECF No. 31 at 22-24.) They argue it was arbitrary and 27 capricious that Defendants did not prepare a HMAP (see id. at 23-24), but also have an 1 proceeding with the gather (see id. at 22-23). As to the Motion, Plaintiffs argue that 2 Defendants must expand the AR with documents regarding Defendants’ decision not to 3 prepare a HMAP before conducting the gather because they have a failure to act APA 4 claim. (ECF No. 48 at 8-10.) Plaintiffs further argue Defendants must expand the AR with 5 documents, photos, and videos regarding restrictions on public viewing of the gather 6 because they have a First Amendment claim, and Defendants did not include many 7 documents pertinent to this claim in the AR. (Id. at 10-12.) In addition, Plaintiffs argue 8 Defendants must expand the AR with post-decision documents, specifically documents 9 relevant to evaluating the safety and efficacy of the gather, because Defendants included 10 several post-decision documents in the AR. (Id. at 12-13.) 11 Defendants persuasively respond to Plaintiffs’ arguments based on their claim that 12 BLM had to prepare a HMAP before the gather—but did not—that they do not dispute the 13 fact that they never prepared a HMAP before the gather. (ECF No. 49 at 16.) “Thus, the 14 court needs only these basic facts and the law to issue its decision on whether BLM 15 violated the WHBA by not issuing a HMAP before the 2022 Gather.” (Id.) The Court agrees 16 with Defendants on this point. The Court does not need to order expansion of the AR to 17 make a merits determination as to whether Defendants had to prepare a HMAP before 18 conducting the gather—the Court must simply make a call on the law. Said otherwise, 19 Plaintiffs’ arguments as to BLM’s failure to prepare a HMAP do not carry Plaintiffs’ “heavy 20 burden to show that the additional materials sought are necessary to adequately review” 21 Defendants’ decision. See Fence Creek Cattle Co., 602 F.3d at 1131. Moreover, as 22 Defendants also argue (ECF No. 49 at 15), it “makes little sense” for the Court to “apply 23 different standards of review to different claims, even though they are premised on the 24 same theory of violation.” Dallas Safari Club v. Bernhardt, 518 F. Supp. 3d 535, 538-39 25 (D.D.C. 2021). The Court accordingly rejects Plaintiffs’ arguments for expansion of the AR 26 based on their contention that BLM should have prepared an HMAP, regardless of what 27 claim they divide those arguments into. 1 As to Plaintiffs’ arguments based on the existence of their First Amendment Claim, 2 Defendants counter that there is already sufficient information in the AR for the Court to 3 adjudicate the claim on the merits, highlighting specific documents in the AR. (ECF No. 4 49 at 18-20.) In reply, Plaintiffs do not specifically address any of the documents (with AR 5 citations) that Defendants mention in their response, instead soldiering on with their 6 argument that there is nothing in the record that would permit the Court to evaluate this 7 claim. (ECF No. 50 at 7-8.) Because Plaintiffs do not address the specific documents 8 Defendants point to in their response in reply, Plaintiffs’ argument regarding its First 9 Amendment claim is unpersuasive. Indeed, it appears to be inaccurate. 10 That said, Plaintiffs make the reasonable offer in their Motion and again in reply 11 that they would be content with submitting declarations regarding their members’ 12 experiences attempting to observe the gather. (ECF No. 48 at 11-12, 50 at 8.) Defendants 13 reference a BLM employee’s declaration, but do not otherwise list any declarations from 14 Plaintiffs or their members as included in the AR. (ECF No. 49 at 18-20.) Thus, Plaintiffs’ 15 perspective on the gather appears to be missing from the AR. The Court needs Plaintiffs’ 16 perspective on their experience of trying to observe the gather to fairly adjudicate their 17 First Amendment claim. And the Court may consider such extra-record evidence in its 18 evaluation of Plaintiffs’ First Amendment claim. See W. Watersheds Project v. 19 Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011) (“we may consider evidence outside the 20 administrative record for the limited purposes of reviewing” a party’s non-APA claim). The 21 Court accordingly permits Plaintiffs to submit declarations describing their or their 22 members’ experiences attempting to observe the gather attached as exhibits to their 23 merits brief limited in scope to Plaintiffs’ First Amendment claim. Defendants may similarly 24 submit declarations with their merits response brief and cross-motion limited in scope to 25 Plaintiffs’ First Amendment claim. 26 That brings the Court to Plaintiffs’ request to complete the AR with post-decision 27 records. (ECF No. 48 at 12-13.) The Court regards this request skeptically because 1 to information available at the time, not post-decisional information.” Cachil Dehe Band of 2 Wintun Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584, 600 (9th Cir. 2018) (quoting 3 Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012)). Moreover, 4 Defendants counter that they only included post-decisional documents in the AR that are 5 both relevant only to Plaintiffs’ First Amendment claims and because they agreed to. (ECF 6 No. 49 at 20-21.) Plaintiffs do not specifically address Defendants’ explanation in reply. 7 (ECF No. 50 at 7-8.) The Court views this non-response as a concession that Defendants’ 8 explanation is accurate. The Court accordingly denies Plaintiffs’ Motion to the extent it 9 seeks an order further expanding the AR to include more post-decision documents than it 10 already contains. 11 C. Discovery 12 Plaintiffs finally seek limited discovery on their writ of mandamus, APA failure to 13 act, and First Amendment claims because they argue the Court’s review of those three 14 claims is not limited to the AR. (ECF No. 48 at 13-14.) Defendants generally counter that 15 discovery would not be appropriate throughout their response, and note that Plaintiffs 16 previously made—but Judge Baldwin rejected—the same argument earlier in this case. 17 (ECF No. 49; see also id. at 21 n.11.) The Court agrees with Defendants. Plaintiffs appear 18 to have the support they need to make their merits arguments from the information already 19 contained in the AR. Indeed, the information Plaintiffs seek through discovery— 20 information about BLM’s historic interpretation of some of its regulations and about the 21 gather itself—is already available to Plaintiffs through the contents of the current AR and 22 law they are free to cite in their merits briefs. In addition, as stated supra, Plaintiffs may 23 supplement their opening merits brief with declarations regarding their First Amendment 24 claim. Accordingly, Plaintiffs’ Motion is denied to the extent it seeks leave to conduct 25 discovery. 26 IV. CONCLUSION 27 The Court notes that the parties made several arguments and cited several cases 1 || that they do not warrant discussion as they do not affect the outcome of the Motion before 2 || the Court. 3 It is therefore ordered that Plaintiffs’ motion to complete and supplement the 4 || administrative record and for leave to conduct limited discovery (ECF No. 48) is granted 5 || in part, and denied in part, as specified herein. 6 It is further ordered that Defendants must complete the administrative record with 7 || deliberative materials as specified herein and file that completed version of the 8 || administrative record along with a privilege log for any documents deemed subject to the 9 || deliberative process privilege or otherwise withheld from the completed version of the 10 || administrative record within 60 days of the date of entry of this order. 11 DATED THIS 30" Day of March 2023. 13 □ MIRANDA M. DU 14 CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28